20 N.C. 238 | N.C. | 1839
after stating the case as above, proceeded as follows: The rules of law, as to the delivery of deeds, were properly laid down by the Judge, Moore vs. Collins, 4 Dev. 384. But we think that there was no evidence in this cause for the application of those rules. There were neither acts done nor words spoken, from which a delivery of the paper as a deed to the plaintiff, or to any person for him, could be inferred. The manner in which the plaintiff got possession of the paper is accounted for by the proof of his residence with his aunts, and his taking possession of all their property and effects on their death. It was not shewn that he ever held possession or made any exhibition of the paper until after their death. But the jury were authorised by the instruction to presume such possession; and thence to infer a delivery without any evidence. Their verdict is not contrary to the weight of evidence, but without any evidence as to the delivery of the paper as a deed. It is unnecessary for us to give any opinion, as to the question, whether the paper is testamentary in its character, as there must be a new trial, because there was no evidence of a delivery, even if the paper could be considered as having been draughted for a deed. There must be a new trial.
Per Curiam.
